In re Estate of Ferdinand Marcos Human Rights Litigation

FACTS: In August of 1977, Ferdinand Marcos was President of the Philippines, Marcos-Manotoc was the National Chairman of the Kabataang Baranggay, and Fabian Ver was in charge of military intelligence. Archimedes Trajano was a student at the Mapua Institute of Technology. On the 31st of August, Trajano went to an open forum discussion at which Marcos-Manotoc was speaking. When Trajano asked a question about her appointment as director of an organization, he was kidnapped, interrogated, and tortured to death by military intelligence personnel who were acting under Ver's direction, pursuant to martial law declared by Marcos, and under the authority of Ver, Marcos, and Marcos-Manotoc. He was tortured and murdered for his political beliefs and activities. Marcos-Manotoc controlled the police and military intelligence personnel who tortured and murdered Trajano, knew they were taking him to be tortured, and caused Trajano's death. Former Philippine President Ferdinand Marcos and his daughter, Imee Marcos-Manotoc, fled to Hawaii in 1986. they were sued in federal court by Agapita Trajano, a citizen of the Philippines who then lived in Hawaii, for the torture and wrongful death of Trajano's son, Archimedes, in the Philippines on August 31, 1977. The complaint seeks damages on behalf of the estate of Archimedes Trajano for false imprisonment, kidnapping, wrongful death, and a deprivation of rights, and on behalf of Trajano's mother for emotional distress. Marcos-Manotoc main contention: The district court lacked subject-matter jurisdiction under the Alien Tort Statute and that the Foreign Sovereign Immunities Act, does not authorize a federal court to assert jurisdiction, over actions taken by a

foreign government against its own citizens. A Issue: WHETHER MARCOS IS IMMUNE UNDER FSIA: The FSIA "must be applied by the district courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity. A "foreign state" under the Act includes "an agency or instrumentality of a foreign state." We have, in turn, held that an "agency or instrumentality of a foreign state" for purposes of the FSIA includes individuals acting in their official capacity. CONTENTION of Marcos-Manotoc: FSIA is the sole basis for jurisdiction, preempting all other bases. She relies on Amerada Hess (case), The Court made clear that the FSIA is the sole basis for obtaining jurisdiction over a foreign state in our courts Thus, the FSIA trumps the Alien Tort Statute when a foreign state or, in this circuit, an individual acting in her official capacity, is sued. Philippine Military Intelligence is an "instrumentality" of a foreign state within 1603(b) of the FSIA, and that the tortious acts were brought about by persons acting pursuant to the authority of Marcos, Marcos-Manotoc, and Ver such that the liability of Marcos-Manotoc is expressly premised on her authority as a government agent.

CONTENTION of Trajano: In Chuidian, the FSIA does not immunize acts of individuals which are outside the scope of their official duties,8 and that the acts of torture and arbitrary killing (which the complaint avers occurred under MarcosManotoc's own authority) cannot be "official acts" within whatever authority Marcos-Manotoc was given by the Republic of the Philippines. COURT HELD AND RATIONALE: Marcos-Manotoc has

admitted acting on her own authority, not on the authority of the Republic of the Philippines.10 Under these circumstances, her acts cannot have been taken within any official mandate and therefore cannot have been acts of an agent or instrumentality of a foreign state within the meaning of the FSIA.

B Absent jurisdiction under the Foreign Sovereign Immunities Act, there is no dispute that the only possible jurisdictional basis for Trajano's action is the Alien Tort Statute, 28 U.S.C. 1350. Section 1350 provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. ISSUE: IS THE ACT OF MARCOS COVERED BY THE ALIEN TORT STATUTE? Marcos-Manotoc Contention: There is no extraterritorial jurisdiction over civil actions based on torture. She urges that Filartiga (case relied upon by the Court) has been undermined by intervening acts of the legislative and executive branches (of US) which indicate that the United States is not obliged to open its courts for the redress of torture occurring in another country. Court: There is no doubt, as the district court found, that causing Trajano's death was wrongful, and is a tort. There is not any dispute that Trajano's death was caused by torture. and, as we have recently held, "it would be unthinkable to conclude other than that acts of official torture violate customary international law."

We do not read the executive branch's flip on this issue as signifying so much; its change of position in different cases and by different administrations is not a definitive statement by which we are bound on the limits of 1350. Rather, we are constrained by what 1350 shows on its face: no limitations as to the citizenship of the defendant, or the locus of the injury. Nor do these acts by the Senate and the Department of Justice support Marcos-Manotoc's argument that general principles of international law may not provide a basis for federal court jurisdiction under 1350. Regardless of the extent to which other principles may appropriately be relied upon, the prohibition against official torture "carries with it the force of a jus cogens norm," which " 'enjoy[s] the highest status within international law. all states believe [torture] is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens. Under international law, any state that engages in official torture violates jus cogens. We therefore conclude that the district court did not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture.